The filing of an appeal does not automatically stay the sentence that was imposed by the trial court. However, a criminal defendant who files an appeal may also request a stay of the sentence, meaning that the defendant will not have to start serving their sentence until after the appellate process has concluded. If a stay is granted, and there is an end date for the stay, whether it is a specific date, or an end date based on some other benchmark, the defendant may request an extension of the stay. Typically, a stay of sentence is not an issue where there has been a guilty plea, although there are exceptions. More often, a stay of sentence is requested where a defendant has been convicted after trial, and the sentence the length of time that the appeal will take would be longer or almost as long as the sentence itself, which means that the appeal would be somewhat pointless from a practical point of view. In other words, if a person is sentenced to one year in jail, they appeal, the appeal takes more than one year, the defendant wins the appeal and their conviction is overturned, they still served that year in jail for an erroneous conviction – the defendant can’t get that time back without a stay of the sentence pending appeal. This kind of practical considering is not the only thing that the appellate court will consider, however. They will also consider whether or not the defendant has a meritorious issue on appeal that is likely to be successful.
While an application for a stay of sentence pending appeal can be made to the trial court that imposed the sentence in some situations, typically the request is made to the Appellate Division. A defendant is only permitted to make only one application for a stay of sentence pending appeal, so it is important that it is presented as well as possible. While there is no time limit for applying for the stay, a significant delay in making the application may undermine the request itself, since it could be perceived that it is not so urgent or important if there is a significant delay. If a stay is denied, another option is to make a motion to have the appeal heard more quickly than usual.